The Time To Collect On This Mortgage Has Expired: It’s a Nullity Under Texas Law

Plaintiff suggests that the key to this case is the erroneous assertion by DEUTSCHE BANK that:

“FFGGP has not furnished any evidence proving that Deutsche Bank Trustee accelerated the debt in 2019”.1

This statement ignores Exhibit 1-I to Plaintiff’s Motion:

a “Notice of Posting and Sale” sent by Deutsch’s foreclosure counsel on January 4, 2019, and the Notice of Foreclosure Sale posting the property for sale on February 5, 2019.

Attached to that correspondence to the borrower is the Default Order rendered under Rule 736, Tex.R.Civ.Pro., dated December 16, 2015.

Contrary to the bank’s wrong statement that the loan was not accelerated in 2019, the

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evidence is uncontradicted that it was accelerated.

Further, Defendant provides no evidence that the acceleration was abandoned.

In fact, in Plaintiff’s Request for Production, such category of documents was requested, and none were provided.

Deutsche insists that the claim brought here, that the 2019 acceleration of its note prevents it from now enforcing the deed of trust, is barred by res judicata because of the judgment in its favor rendered in the second case brought.

This argument fails.

That case was brought before 2019 and decided before 2019, and therefore it could not have addressed or precluded claims based upon limitations accruing in 2019 and terminating the powers of sale in 2023.

Deutsche makes another incorrect assertion of fact.

Deutsche insists that the loan was not accelerated again after an abandonment of acceleration issued in 2015.

The property was posted for sale on January 25, 2016, for the March 1, 2016 sale.2

Deutsche correctly notes that these parties were litigating the issue of limitations in the County Court at Law #2, Kaufman County, Texas, and that the case was dismissed for want of prosecution.3

At issue in that case was a 2015 acceleration.

There was no judgment on the merits.

Before the case was dismissed both parties filed Motions for Summary Judgment.

The court did not address the motions before dismissing the case.

In that case Plaintiff did not put in issue the 2019 acceleration because the case was filed before that could have been an issue.

RES JUDICATA CANNOT APPLY

The elements of res judicata:

“Four elements must be met for a claim to be barred by res judicata:

“(1) the parties must be identical in the two actions;

(2) the prior judgment must have been rendered by a court of competent jurisdiction;

(3) there must be a final judgment on the merits;

and

(4) the same claim or cause of action must be involved in both cases.”

In re Ark–La– Tex Timber Co., 482 F.3d 319, 330 (5th Cir.2007).”

Oreck Direct, LLC v. Dyson, Inc., 560 F.3d

2 See Exhibit 1-A. In the unlikely event that Deutsche was unable to locate this in their archives, these documents were produced to it by Plaintiff in the earlier litigation.

3 Both parties moved the court to reinstate the case. The court denied the motion.

398, 401 (5th Cir. 2009).

The first three elements are present.

The fourth element is not present because the same issue is not being litigated.

The second lawsuit upon which Deutsche depends was filed, litigated and concluded before the 2019 acceleration.

Issues regarding the compliance of the loan with the Texas Constitution or other similar issues are certainly off the table at this point.

However, what we have here is a 2019 acceleration that was not the subject of any of the previous litigation.4

“Res judicata does not operate as a bar to litigation when the second claim could not be raised in the previous litigation.”

Barnes v. United Parcel Serv., Inc., 395 S.W.3d 165, 173 (Tex. App.—Houston [1st Dist.] 2012, pet. denied)

In Barnes, the Court held that the claim of res judicata must fail because the issues in that case were not the same as the issues in the previous suit.

“Because we conclude that the issues decided by the Department of Workers’ Compensation are not identical to those presented in this action for gross negligence, we reverse and remand for further proceedings.”

Id at 169.

(See too:

“Res judicata does not operate as a bar to litigation when the second claim could not have been raised in the previous litigation.”

Whallon v. City of Houston, 462 S.W.3d 146, 155–56 (Tex. App.—Houston [1st Dist.] 2015, pet. denied)

In conclusion, the summary judgment evidence is uncontradicted that the underlying mortgage note was accelerated in 2019.

There is no evidence that the acceleration was abandoned.

Therefore, Plaintiff is entitled to summary judgment.

DEUTSCHE urges5 that FFGGP provided no evidence of a 2019 acceleration.

The provenance of this assertion is unclear, as the January 4, 2019 Notice of Posting and the Notice of Sale were issued by it (or at its behest) and has been proffered by Plaintiff in its motion.6

FFGGP cannot explain, and DEUTSCHE does not explain, why it failed to produce evidence of the

4 As discussed in the Motion, the third case was based upon the 2015 acceleration. During that litigation Deutsche never produced any evidence of abandonment. Rather, it relied upon the theory of subrogation.

5 Page 20 of its Memorandum

6 The documents are reproduced here, again, as Exhibit 1-B

abandonment of the 2015 acceleration upon which it now so heavily relies while the parties were litigating the earlier Kaufman County case.7

But this is moot now, inasmuch as it re-posted the property in January 2019.

TENDER IS A NON-ISSUE

Finally, DEUTSCHE urges that because there is no evidence that FFGGP tendered the amount due under the note it is now precluded from seeking relief.

It cites a case that tender is required on sums owed on the note.8

However, in this case FFGGP insists that the deed of trust is now unenforceable.

It would be a fool’s errand to pay off a note that cannot be enforced, and it would be a most unusual precept in the law to require payment of an unenforceable obligation as a condition precedent to a determination that the obligation is unenforceable.

CONCLUSION

Res judicata does not apply and cannot apply because the facts made the basis of Plaintiff’s suit did not exist at the time of the earlier litigation.

The summary judgment evidence conclusively shows the acceleration and there is no evidence of abandonment. The issue of tender is a non-issue as tender cannot be required to litigate the enforceability of a note.

WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that the Court grant its Motion for Summary Judgment and deny Defendant’s Motion for Summary Judgment.

/s/ Kenneth S. Harter

Kenneth S. Harter

State Bar ID 09155300

LAW OFFICES OF KENNETH S. HARTER
6160 Warren Pkwy Suite 100
Frisco, Tx. 75034
(972) 752-1928
Fax (214) 206-1491
ken@kenharter.com

7 As explained in the Motion for Summary Judgment, this document was not produced until DEUTSCHE filed its Motion for New Trial in the state court.

8 Cook-Bell vs. Morg. Elec. Registration Sys., Inc., 868 F.Supp 2nd 585, 591 (N.D. 2012)

Attorneys for Plaintiff

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing was served on counsel of record on August 7, 2024, via the ecf system.

/s/ Kenneth S. Harter

Kenneth S. Harter

EXIBHIT 1

UNSWORN DECLARATION MADE PURSUANT TO C.P.R.C. §132.001
STATE OF TEXAS COUNTY OF COLLIN

My name is KENNETH S. HARTER. I am above the age of 18. I am competent to make this Declaration. All facts stated herein are within my personal knowledge and are true and correct.

Attached hereto and marked Exhibit 1-A is a true and correct copy of the foreclosure posting for the property the subject of this suit for March 1, 2016.

Attached hereto as Exhibit 1-B is a true and correct copy of the Notice of Acceleration and Sale for 2019.

I had represented FFGGP in the third lawsuit in Kaufman County Court at Law.

During that case Defendant never produced any document indicating an abandonment of the 2015 acceleration.

During the litigation it relied upon the argument that it was entitled to enforce the original, purchase money deed of trust, based upon principles of subrogation.

The letter purporting to abandon the 2015 acceleration was not produced by the bank until it filed its Motion for New Trial in this case, before it was removed to this Court.

/s/ Kenneth S. Harter

Kenneth S. Harter

JURAT

My name is KENNETH S. HARTER. My date of birth is 02/19/1954.

My business address is 6160 Warren Pkwy, Suite 100, Frisco, Tx., 75034.

The forgoing is made under penalty of perjury, and is true and correct.

Signed on August 7, 2024.

/s/ Kenneth S. Harter

Kenneth S. Harter